When Is Opinion Evidence Admissible in Court
We then examine three dangers arising from our review of the jurisprudence. First, the layman`s proofs of opinion are detached from their original conception as a concise summary of qualia. On the contrary, lay witnesses are now talking about areas where there are methods to control unconscious bias. For example, humans are excellent model builders and regularly identify illusory patterns in large amounts of data. This is especially true when people have preconceived ideas or prejudices about what they should find, as investigative police officers often do. However, since the rule of lay opinion is more permissive, lay witnesses do not have to follow the methods recently prescribed by the major scientific bodies or, in general, meet the stricter reliability requirements imposed on expert opinion.  In the Colpitts case, on the twenty-fourth day of a lengthy criminal fraud trial, a question of secular opinion was raised. The defendants were “accused of unlawfully influencing Knowledge House Incorporated`s (KHI) public procurement price.”  On this twenty-fourth day, the defence requested that the testimony of one of the Crown`s key witnesses, a senior police officer named Ian Black, be qualified.  Constable Black intended to present evidence from his investigation that established a medico-legal link between the accused and the alleged crime.  The Crown had originally offered Constable Black as an expert, but withdrew from that position, noting that “none of Mr.
Black`s statements will constitute an expert opinion.”  This tactic proved successful: the evidence was admitted. Graat adopted a more flexible and principled approach to secular opinion, which over time led to the very uncertainty that the Court sought to avoid. In many ways, the decision was a logical correction to the previous rules – a system of exclusions – which had a negative impact on the judicial economy, which were very different from province to province and created a great deal of uncertainty.  However, principles-based approaches can lead to the unstructured exercise of judicial discretion.  This appears to be the case with the post-Graat lay rule to which the majority of the Alberta Court of Appeal in Lee referred: “Whatever rule may have existed against a lay witness who testifies that he did not survive the Graat decision.  In addition to summarizing facts or events, a lay opinion may also be used as an abbreviation to describe a person`s mental or emotional state, provided that this opinion is also based on the current conclusions of the witness testifying, drawn from various facts presented simultaneously to the witness`s senses. See, for example, State v. Orellano, 260 N.C. App.
110 (2018) (detective`s description of the victim`s behaviour as thoughtful, paused, “just trying to remember” and “really affected by what happened” were short admissible statements and not inappropriate respondents for the victim); State v. Pace, 240 N.C. App. 63 (2015) (no error in allowing mother to express lay opinions about changes she observed in her daughter`s behaviour that she believed were due to sexual assault); State v. Phillips, 365 N.C. 103 (2011) (no error in allowing the witness to express the opinion that the defendant “knew what he was doing” and “planned it” as an abbreviated form of the defendant`s conduct, based on the witness`s submissions); State v. Roache, 358 N.C. 243 (2004) (the witness`s statement that the accused was “the aggressor” and “would have killed me if he could” was a brief admissible statement explaining the witness`s perception); State v.
Johnston, 344 N.C. 596 (1996) (admissible scientific opinion in which witnesses stated that the defendant would “do something” and that the victims did not have time to leave before the defendant approached). The Federal Rules of Evidence abandoned this historic rule because Rule 705 states that witness testimony is not reprehensible simply because it “poses an ultimate problem.” Of course, opinions on the last issue of the controversy must abide by the other rules that apply to opinion statements. Therefore, an opinion about who to blame for an accident may be inadmissible simply because it is not justified by the submissions or is not necessary to support the trier of fact. Statements of opinion summarizing the facts observed are admissible because “a description of all the detailed underlying facts that contributed to the formation of the witness`s opinion may be possible,” but “is impracticable because of the difficulties inherent in articulating one`s own analytical thought processes.” State v. Lesane, 137 N.C. App. 234 (2000). See, for example, State v. Brown, 182 N.C. App.
115 (2007) (non-scientific opinion admissible for witnesses to testify that another motorist`s lane ended, requiring him to “try to push back” but he was “forced to take the path he was on”); State v. Graham, 186 N.C. App. 182 (2007) (the officer`s statement in the burglary trial that the door was forcibly pushed or pushed was a brief admissible statement of fact, based on “the fact that the door was tilted but still locked, and the door frame broken”); State v. Lesane, 137 N.C. App. 234 (2000) (witness may testify in the form of an opinion that the accused “tried to shoot him in the head” when statements about the exact position of the body, location and angle would not have been practical); State v. Braxton, 352 N.C. 158 (2000) (admissible secular opinion in which prison officials testified that the screams sounded “as if anyone feared for his life” and that the crime scene “seemed worse than any pig murder he had ever seen”); State v.
Waddell, 130 N.C. App. 488 (1998) (admissible non-scientific opinion in which the witness stated that the child had used two dolls to “illustrate” various sexual acts committed by the respondent on the child). A non-expert opinion refers to an opinion given in limited circumstances by laypersons or persons who do not have specialized knowledge. These circumstances mainly concern matters of everyday life in which a person can be expected to give opinions and which opinions can be safely implemented by others. Exploring the limits of non-scientific exceptions poses particular challenges for courts and jurists. This is a task based on the purpose of the exception, the limitations of human psychology and the duty of the trial judge to retain a different type of evidence – that presented by experts. Overall, this challenge has not been met. As we have shown in our investigation of case law, Canadian courts are widely divided on the content of the secular rule and sometimes on the existence of a rule. Moreover, this is a high-stakes issue, particularly for criminal accused who regularly face opposing lay witnesses who all bear the hallmark of experts. We hope to have taken an analytical look at this often overlooked problem.
But that`s just the first step. Canadian courts should adopt a more structured framework for admitting secular views that prevents injustice and identifies truth. Several aspects of Sergeant Carrière`s testimony deserve to be highlighted. First, the Crown tried to support the sergeant`s opinion by focusing on an expertise for which he was not qualified: “Is it part of your training to notice that if you are lucky enough to see visible prints and notice something about them, are you trained to draw conclusions about them?”  Sergeant Carrière responded, describing his experience beyond that of a canine expert to someone with obvious expertise in interpreting the patterns left by shoe prints: “Of course. And in six and a half years, I`ve experienced that. The use of this know-how sometimes follows fingerprints.  Sergeant Carriere drew on this expertise to provide a naïve reader with an account of what looks like a pattern of shoe prints and other marks in the snow similar to Rorschach: “There was no fixed pattern in them, but one could see how the outer layer would be the small footprints and then the largest, Naturally try, to cut this person.  This account threatened the credibility of the respondent and was used by the trial judge for this purpose.
 The testimony of a lay witness often begins with observations that he or she personally perceived.